O'Connor v. O'Connor, Rice & Barnes

MARKS, J.

This is an appeal from a judgment awarding certain map books and maps, levied upon by the sheriff of Los Angeles County, to Robert F. Shippee, the third party claimant.

It is admitted that both plaintiff and Shippee were creditors of O’Connor, Rice & Barnes, Inc., the former owners and possessors of the books and maps, at the time of their sale to Shippee by the corporation. The only question presented is whether there was an immediate delivery followed by an actual and continued change of possession of the personal property sufficient to satisfy the provisions of section 3440 of the Civil Code.

The corporation was lessee of property belonging to plaintiff and defaulted in the payment of the rent. O’Connor brought an action against it which was compromised by a contract dated April 4,1938. Silas P. Rice was the secretary-treasurer, and P. T. Barnes was the president of the corporation and the owners of its stock.

Shippee represented the corporation which could not pay his fee. Immediately after April 4, 1938, it was agreed that the map books and maps be sold to him and their value applied on his fee. The amount to be credited does not appear in the record. The books and maps were in the possession of the corporation, were used by it in its business and remained in its possession until about June, 1938, when Barnes secured the consent of Shippee to use the books him

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self. They were in his possession when they were taken by the sheriff under a writ of execution issued in this case.

The only evidence of change of ownership or possession were labels pasted on the books and maps, upon each of which was written, “This is the property of Robert F. Shippee.” The books and maps had a value of less than $200.

It is the theory of Shippee, which must have been adopted by the trial court, that the sale was made in good faith, for a valuable consideration, without any actual intent to defraud; that while, prior to the sale, the property belonged to the corporation and was in its possession through the physical possession of Rice and Barnes, title was passed to him by the sale; that (until the next June) possession passed to him through the actual possession of Rice and Barnes who held the books and maps for him as his agents; that after June, possession remained in him through the actual possession of Barnes as his agent until the books and maps were taken by the sheriff; that the labels on the books and maps gave sufficient notice of change of ownership and change of possession.